Decriminalization in New York: A Half-Baked Measure?

By: Rob Griffitts and Jordan M. Steele

Passed in the twilight hours of New York’s last legislative session, months of negotiations produced a reform that will further decriminalize possession of marijuana. Advocates celebrate the bill for providing vital relief to individuals through expungement of prior misdemeanor convictions for marijuana possession. However, both proponents and critics remain dissatisfied with the compromise. Critics of the bill rail against it for softening the State’s position on possession, while many of those in favor of ratification remain disappointed with its scope. Despite being “decriminalized”, marijuana remains prohibited in the state of New York. This distinction is critical for the burgeoning cannabis industry; distribution will remain a criminal activity, and as a result, there remain substantive health concerns when the product is produced in the absence of oversight.

The New York Reform 

While marijuana possession has been decriminalized in New York for decades, this reform expands upon existing law and provides a means for individuals to have their prior criminal records expunged. The prior law, passed in 1977, decriminalized possession of marijuana for amounts up to 25 grams (approximately one ounce). The new bill does several things, including raising the limit for possession. First, the penalty for possession of less than one ounce will be lowered from $100 to $50 and this amount will not increase because of prior criminal history. Second, the bill provides that possession of one to two ounces, previously a Class B misdemeanor, will become a violation, punishable by a fine of $200. More than two ounces will still be considered a crime, not a violation. Third, smoking marijuana in public will now be considered a violation. It had previously been considered a misdemeanor, a loophole which legalization advocates claimed was used to target racial minorities.

The Effect of the New Bill on Individuals

On the individual level, the bill is a major step forward. Early estimates show that nearly 600,000 New Yorkers could benefit from the expungement of past marijuana convictions. The bill’s sponsor, Senator Jamaal Bailey, has stated that prior convictions for marijuana possession had adversely affected his constituents in the Bronx. Those convictions were “limiting [New Yorkers’] access to housing, access to education, [and] affecting their ability to obtain employment.” In a radio interview on WAMC, Governor Cuomo commented that “it makes the situation much better especially for the black and brown community that has paid such a high price.” Politicians are hopeful that this bill will reduce the disparate impact of the war on drugs on minority communities.

Persisting Prohibition of the Cannabis Industry

Despite the relief the bill offers to individuals, decriminalization is not legalization, and many harms accompanying the prohibition of marijuana still persist. The prohibition continues to fuel an illicit underground distribution network, estimated to be worth $40 billion or more in the U.S. Profits from marijuana distribution in New York continue to go untaxed, and as a result, the state is foregoing a valuable source of revenue. The new bill also misses the opportunity to regulate the industry in order to ensure consumer safety. A regulated market could ensure that marijuana products are free of contamination, labeled for potency, provide adequate warnings to address health concerns and be contained in child-proof packaging. There also still persists the fear of the unequal application of the laws towards minority groups traditionally targeted for drug-related offenses. If history repeats itself, New York could ultimately see certain marijuana arrests increase, which was the result after the first bill decriminalizing marijuana was enacted in 1977. While the bill leaves these issues unaddressed, those in the cannabis industry remain hopeful that this reform provides a step in the right direction on the road to legalization.